77 Vt. 67 | Vt. | 1904
The respondent was informed against for selling intoxicating liquor without a license. There were two counts, relating to- different occasions, and there was evidence in support of each count. When the evidence was all in the respondent moved that the State be required to elect which of the counts it would stand upon and to enter a nol. pros, as to the other. The motion was overruled and an exception was taken. The Court submitted to the jury whether the respondent was guilty on either or both of the counts; to which the respondent excepted. The jury having returned a verdict of “guilty on both counts,” judgment was entered thereon and sentence imposed that the respondent pay a fine of $600 and costs. “To- entering said judgment and imposing said fine” the respondent excepted.
Under these three exceptions the question is now presented, whether the respondent could be legally tried, convicted and sentenced upon the two counts, charging two separate and distinct offences of the same kind and subject to the same punishment. It is admitted that such counts-may properly be joined and that no advantage can be taken thereof by demurrer or motion to quash. State v. Smalley, 50 Vt. 736; State v. Lockwood, 58 Vt. 378, 3 Atl. 539. Whether the State should be put to its election, and if so at what stage of the trial, are matters for the discretion of the trial court. If the accused will be confounded in his defence or deprived of the protection of legal rules by requiring him to answer both charges before the same jury, the court will not compel it. But the offences may be so- related to each other that justice will seem to demand a joint trial, as in Pointer v. U. S., 151 U. S. 396, 38 L. Ed. 208, where two
The jury was properly instructed to treat each count as a separate accusation.
There was no error in omitting to charge that all the evidence in the case should be considered under each count. It was only the evidence applicable to the count, that was to be considered in determining the respondent’s guilt thereunder. If there was evidence applicable to both counts it was to be considered under each. Such was the substance of the charge as we read and understand it, although respondent’s counsel seems to regard it otherwise.
There was evidence tending- to show a joint sale to the parties named in the information. The motion to set aside the verdict was, therefore, properly denied.
The penalty prescribed in Acts of 1902, No. 90, Sec. 68, relates to all who sell, etc., without a license, whether in license towns or elsewhere. The argument that it relates only to violations of the act in towns that have voted license, and that violations of the act in other towns are punishable only under Sec. 81, is colorable but not convincing.
Judgment that there is no error in the proceedings of the County Court, and that the respondent take nothing by Ms exceptions. Let a mittimms issue and execution be done.